Tuesday, September 26, 2017

Here's an unpub'd decision from the 3d DCA that starts off like a movie pitch:

The distant origin of this bizarre case lies in the efforts of Richard Powers to escape prosecution by the Sacramento District Attorney’s Office for four counts of felony drunk driving. Fearing convictions would ruin him professionally, Powers sought to make a deal with the district attorney by which he would escape prosecution in exchange for acting as a confidential informant about another, bigger crime. Powers’s problem? He did not have a bigger crime to report. Undeterred, Powers made up a story that his friend, Marco Ambroselli, was illegally selling performance-enhancing drugs.

The issue whether a criminal defendant has a constitutional right to obtain social media records from an electronic communication or remote computing service is currently under review by the California Supreme Court in Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, review granted December 16, 2015, S230051 (Facebook I). In this case, we address the same issue knowing that our high court will likely grant review and hold this matter pending a decision in Facebook I. Nonetheless, we publish our thoughts agreeing with the conclusion in Facebook I for their potential persuasive value. (Cal. Rules of Court, rules 8.1105(e), 8.1115(e)(1) [published opinions for which the Supreme Court has granted review have no binding or precedential value but may be cited for potential persuasive value only].) Accordingly, the petition for writ of mandate is granted.

Here's a final footnote in this unpub'd decision here that sticks it to an appellant:

Any remaining points in [Appellant's] opening brief “are simply overtaken or outflanked
by resolution of the matters which we do discuss or do not warrant discussion because
they are too fragmentary or obscure.” (Claypool v. Wilson (1992) 4 Cal.App.4th 646,
659; see Tilbury, supra, 137 Cal.App.4th at p. 482.)
[Respondent] has not sought sanctions for a frivolous appeal, nor have we issued an
order to show cause on our own motion, despite the fact that the manner of [Appellant's]
counsel’s briefing is sorely deficient. It is hard to believe that any reasonably competent
attorney would think any of the claims raised on appeal--in the manner they were raised--
had any reasonable chance of success. Our forbearance should not be construed as an
invitation to [Appellant's] counsel to repeat his disregard of appellate norms in the future.

This
full-day conference will bring together a diverse set of scholars,
practitioners, and policymakers to explore what federalism means now. In this
era of shifting state and federal policy positions, what constraints and
opportunities does federalism present? Can people of different views agree on
rules and principles to guide us going forward?

The
day is divided between a framing panel and two topical panels, one focusing on
federalism and environmental law (climate change, specifically) and the other
focusing on federalism and immigration law. The Chief Justice of California
will deliver the keynote address, and the program concludes with remarks by
Erwin Chemerinsky, Dean of Berkeley Law.

Berkeley
Law presents this event in partnership with the Institute of Governmental
Studies, the Federalist Society, the American Constitution Society, the Bar
Association of San Francisco, and the Alameda County Bar Association. This
event is eligible for 5 hours of MCLE credit, pending State Bar approval.

Today the 9th Circuit finds the Rule 23(f) 14-day deadline to seek appellate review is not jurisdictional and may be subject to tolling. Opinion is here.

The panel held that the fourteen-day Rule 23(f) deadline
was not jurisdictional. Specifically, the panel that under
Bowles v. Russell, 551 U.S. 205 (2007), and Eberhart v.
United States, 546 U.S. 12 (2005), the Rule 23(f) deadline
was not jurisdictional because it was procedural, did not
remove a court’s authority over subject matters or persons,
and was in the Federal Rules of Civil Procedure, rather than
in a statute.
The panel held that because the Rule 23(f) deadline was
not jurisdictional, equitable exceptions, such as tolling, might
apply. The panel also held that a motion for reconsideration
filed within the Rule 23(f) deadline would toll the deadline.

Interested in preemption? Then you'll enjoy these opinions here and here.

Thursday, September 14, 2017

So, maybe you have opinion about what the Supreme Court should do regarding the Bar Exam: Lower the passing score? Keep it the same? Abolish it? Well, the Supreme Court has issued an order in In re California Bar Exam inviting you to comment, which reads as follows:

On September 13, 2017, the court received the Final Report on the 2017 California Bar Exam Standard Setting Study of the State Bar of California. Any person or entity wishing to comment on the State Bar's Final Report may submit an amicus curiae letter (referencing docket number S244281 In re California Bar Exam) to the Office of the Clerk, Supreme Court of California, 350 McAllister Street, San Francisco, CA 94102. The commenter must also send a copy of the amicus curiae letter to Vanessa Holton, General Counsel, The State Bar of California, 180 Howard Street, San Francisco, CA 94105. The letters to the court and the copies to the State Bar must be postmarked on or before October 2, 2017, or be hand-delivered to the designated addresses by October 2, 2017.

And see in the DJ One Bar Exam is Enough, arguing that that "The California Supreme Court should join the vast majority of other state supreme courts that have adopted reciprocal admission on motion for experienced attorneys from other states."
And also in the DJ Pass score should be a valid minimum standard, about how "The California Accredited Law Schools have filed
a letter brief with the California Supreme Court supporting lowering the
minimum passing score for the California bar exam from 1440 to 1390."

California appellate lawyers are extremely fortunate that the nation’s premier appellate CLE seminar is coming to the Westin Hotel in Long Beach in less than two months. The annual Appellate Judges Education Institute (AJEI) Summit will last four days, from November 2 through 5, and will include superb CLE programs on all aspects of appellate practice. It will be attended by hundreds of appellate judges, lawyers, and staff attorneys from around the country. In addition to the top-flight CLE programs, the Summit will include an evening cocktail reception at the Aquarium of the Pacific, a gala dinner, off-site activities, dine-arounds, cocktail receptions and other opportunities to network and make new friends. Time is running out for early bird registration. So register now!

Saturday, October 14, 2017
Total 5.75 Hours of MCLE
Includes 5.75 Hours of Legal Specialization Credit in Appellate Law and 1 Hour
Legal Ethics

This inaugural Appellate Summit will update you on the latest
developments in appellate practice and will provide invaluable insights from
appellate justices, trial judges and appellate experts from across the state.
The breakfast keynote will feature a lively presentation from Presiding Justice
Arthur Gilbert of the Second District Court of Appeal on brief writing, and the
luncheon keynote will feature a not-to-be-missed discussion with California
Solicitor General Ed Dumont.

Earn up to 13.5 Hours MCLE Credit, including Legal Ethics and
Legal Specialization

“Sometimes passion can get in the wayof the
point you’re trying to make.”

Today's DJ profiles 2/7's Justice John Segal in Wordsmith: Known for his witty, writerly opinions, John Segal is learning to deal with the complexity of being an appellate justice. The article emphasizes his "understated humor," "verve and levity," "rapier wit," "clarity," and opinion-writing skills. He is described as an "active questioner" at oral argument.

His advice to lawyers? "Cool the language."

“Some of the rhetoric in the appellate briefs is just too
strong, too over the top. You read and it you go, ‘Really? Calm down!’”

This month's LA Lawyer pratice tip's column is Guidance on When to File a New Trial Motion (at pp. 12-14) by Valerie McGinty.

Finally, Gov. Brown reminds us that today, 9/11, is Patriot Day, a day to "rededicate ourselves to the American values of life, liberty and equality, that were, as much as our land and our loves ones, the target of the attacks."

Justice Eileen Moore presented “Race, Hollywood and
the Law” at the OCBA Appellate Law Section Meeting. The presentation was
based on her book, “Race Results: Hollywood vs. the Supreme Court: Ten Decades of Racial Decisions and Film.” In the presentation (and her
book), Justice Moore discussed the differences between the U.S. Supreme Court
and Hollywood’s treatment of African-Americans through select films and Supreme
Court opinions over the past hundred years.The next Section meeting will be October 4, 2017
with the presentation of the David G. Sills award to Dean Chemerinsky, who also will be speaking, of course, previewing SCOTUS's upcoming term with form Dean John Eastman.

Friday, September 8, 2017

Many eager aspiring-attorneys are awaiting bar results (yeah, the mere 2-day bar exam) and looking forward to celebrating their admission... But that won't happen until just before Thanksgiving, so the whole family can be together for the momentous occasion. But today, our Governor calls upon all Californians to pause and celebrate Admission Day by reflecting on how it was that California became the 31st state. His history lesson appears in his Proclamation Declaring Admission Day.

The DJ reports that Jean-Claude André -- a self-described "born appellate lawyer" -- has joined Sidley's "super-elite" Supreme Court and appellate practice (Sidley Austin hires former federal prosecutor). The firm's press release notes J.C. "spent over nine years in the appellate section at the U.S. Department of
Justice — served as the Criminal Appeals Chief for California’s Central
District, supervising more than 350 appeals each year" before the 9th Circuit."Law360's article (Sidley Austin Picks Up Ex-DOJ Appeals Hotshot in LA) notes that J.C. argued over 75 appeals during his time at the DOJ and back in 2007 at age 31 he became one of the youngest lawyers to argue before SCOTUS. (The Recorder's story is In City of Stars, Sidley Snags Appellate 'Van Damme')Also on the move... Ryan Bounds, a federal prosecutor in Oregon, has been nominated to the Ninth Circuit today. [9/11 update: Law360 reports Oregon Sens. Won't Support 9th Circ. Nominee]

The 2017 Institute for Corporate Counsel
will be held on Wednesday,
December 6, 2017, at The California
Club in downtown Los Angeles. This day-long conference
event focuses on the intersection of law, politics and business and is
specially crafted for in house and outside counsel. Among other great panels,

Get insight on the challenges facing the California
Supreme Court with
Justice Mariano-Florentino Cuéllar.